The Supreme Court applies the Juana Rivas doctrine and lowers the sentence of an abuser who hid his children
The Supreme Court has halved the prison sentence of an abuser who hid his two young children for two weeks from their mother in 2018. The magistrates apply the criterion arising from the case of Juana Rivas and leave his sentence at two years in prison for a single crime of child abduction. Sources in the case explain to elDiario.es that the father, with several convictions for sexist violence In his history, he is already in prison for other reasons and therefore he will serve a sentence behind bars for taking his children without the mother's permission.
The events, according to the sentences to which elDiario.es has had access, began in September 2018. The couple had two children under 10 years of age, lived in the Basque Country and had been divorced for several years. The Basque courts had awarded the custody of the minors to the mother and had also left the decision of which school they should attend in her hands. These sentences of the divorce process, examined by this newspaper, reflect "the convictions of the father in the domestic sphere": according to sources in the case, to date he has been convicted several times for various crimes related to gender violence and breach of sentence.
The deliveries of the two children took place at a Family Meeting Point but that day, in the first week of September, the father did not deliver the two children. He did not do it either the following day or the following week while the two minors were absent from class and he refused to reveal to the mother where he had them. Over the phone he urged his ex-wife to change the children's schools before saying that "his phone was going to stop working", without giving any new contact number and stating that he "would not find out" about no post message. The father was located with the children 16 days later in a town in the province of Salamanca, more than 400 kilometers away by road.
At first, the Basque courts imposed a sentence of four years in prison, at the rate of two years for each crime of child abduction, one crime for each child. This was established by a criminal court in 2020 and later the Provincial Court of Bizkaia endorsed this sentence in the first month of 2021. The judges reasoned at that time that, when it comes to child abduction, "there are as many crimes as there are minors have been stolen because their commission attacks personal legal assets", in addition to reasoning that "being two passive subjects of this type of crime, there are two harmful results".
This jurisprudence on the abduction of minors was qualified by the Supreme Court when in April 2021 it decided cut in half the conviction of Juana Rivas, the mother of Maracena, convicted of hiding her two children from their father for a month, whom she then accused of mistreatment. The case of Juana Rivas it served for the criminal court to establish as a criterion that it was a single crime even though there were several affected children, which meant that his sentence was reduced from five to two and a half years in prison. that same doctrine has been applied to the case of this man and his sentence is reduced from four to two years in prison for a single crime of child abduction.
The judges, with Javier Hernández as rapporteur, estimate the sentenced person's appeal, with the contrary opinion of the Prosecutor's Office - which did support this reduction in the Rivas case - and of the prosecution, and reduce his sentence by half. The criminal court explains that he must be sentenced for a single crime of child abduction and recalls that this "normative issue" was already "the subject of a plenary pronouncement" when they resolved the case of Juana Rivas, whose sentence they reproduce verbatim for several pages. "It is appropriate, therefore, to annul one of the two sentences, subject to appeal", settles the Supreme Court in a sentence that, as is usual in cases of child abduction resolved in the last year, have a particular vote against the speaker and Leopoldo Puente, two of the latest additions to the room chaired by Manuel Marchena.
A sentence of two years in prison would not have to imply his obligatory entry into prison to serve his sentence, but, in this case, it will be so. Sources familiar with the procedure tell elDiario.es that at this time the convicted person is in prison serving a sentence for another matter, and that he also has other pending sentences for gender-based violence. The process, in any case, will now enter the execution phase to decide if this sentence is added to those already serving.
The Supreme Court reduces his sentence for this reason but rejects the rest of the appeal, in which his defense also asked that he be sentenced for a less serious version of the crime of child abduction. His lawyer alleged that he returned the minors before the 15-day limit set by the Penal Code and that, in addition, he allowed the children to speak on the phone with the mother even though she did not reveal her whereabouts. The judges reply that he was detained with his children "hundreds of kilometers from his habitual residence without any information being available beyond the statement contained in the appeal that his intention was to return the minors to the place established as their habitual residence".
Every year, the Spanish courts sentence almost 6,000 people for crimes related to the family: in 2019, for example, there were 5,821 convictions for crimes against family relationships and the vast majority, a total of 5,749, were crimes of family abandonment. A crime that is usually applied to when one of the parents does not fulfill her obligations, such as paying alimony. Of that amount, two years ago, the courts imposed 30 convictions for crimes of child abduction, 0.5% of all crimes of this type.
The data from the Central Registry of Prisoners of the Ministry of Justice, with which the National Institute of Statistics (INE) prepares the annual count of crimes and convictions, show that between 2013 and 2020 the courts and tribunals have sentenced 262 people for crimes child abduction, with between 30 and 40 convictions a year. It is the only crime related to the family in which there are more women convicted than men: in this period of time there were 122 convicted and 140 convicted. In 2019, in the case of the crime of family abandonment, there were 5,315 men convicted and 506 women convicted.
Just like explained elDiario.es, various jurists advocate applying a gender perspective to this type of crime. This was expressed, for example, by the courtroom prosecutor Theresa Peramato recently stated: "Knowing that most of the people who abduct their sons and daughters are mothers, who are also caregivers, and that this behavior may be due to the need to protect themselves and their sons and daughters, what is appropriate is to take extreme diligence in the investigation of these procedures”, he explained, calling on the prosecutors to put the magnifying glass also on the “incidence of gender-based violence in abduction and give the legal response that is fairer and more appropriate, with application in your case of the complete or incomplete exempting circumstances that are applicable".
